Russell v. Minneapolis St. Ry. Co.

• Citation: 86 N.W. 346,83 Minn. 304
• Parties: RUSSELL v. MINNEAPOLIS ST. RY. CO.
• Decision Date: 31 May 1901
• Court: Supreme Court of Minnesota (US)

83 Minn. 304

86 N.W. 346

RUSSELL

v.MINNEAPOLIS ST. RY. CO.

Supreme Court of Minnesota.

May 31, 1901.

Appeal from district court, Hennepin county; J. F. McGee, Judge.

Action by Ione M. Russell against the Minneapolis Street-Railway Company. Judgment for defendant, and plaintiff appeals. Affirmed.

Syllabus by the Court

1. In a personal injury action it is held, that the fact that plaintiff had no prior actual knowledge of the location of, or the danger causing, her injury, is not conclusive that she was not guilty of contributory negligence. The rule in such cases is that if the person have no actual knowledge of the danger causing the injury, and could not by the exercise of reasonable care have discovered it, he cannot be said to be guilty of contributory negligence. But, if ignorant of the danger, and the exercise of reasonable case would have made it known, and there be a failure to exercise such care, he is chargeable with negligence, and to the same extent as though perfectly familiar with the location and danger.

2. Evidence examind, and held (a) to show conclusively that plaintiff was guilty of contributory negligence; and (b) that such evidence does not show a failure on the part of the defendant to exercise reasonable and ordinary care to avoid plaintiff's injury after discovering her in a position of periol. Brady & Robertson, for appellant.

Koon, Whelan & Bennett, for respondent.

BROWN, J.

This was an action to recover damages for personal injuries alleged to have been caused by the negligence of the defendant. The trial in the court below resulted in a verdict for plaintiff, which was set aside on motion of defendant, and judgment ordered in its favor notwithstanding the same, and plaintiff appealed.

The assignments of error present two questions for consideration: (1) Whether appellant was guilty of contributory negligence, as a matter of law; and, (2) assuming that she was guilty of such negligence, was the motoneer in charge of the street car which struck her and caused her injuries guilty of willful and wanton carelessness, or did he fail to exercise ordinary care to avoid the accident after having discovered her in a position of peril?

The court below held, in granting the motion for judgment, that the evidence was conclusive of plaintiff's contributory negligence. We are of opinion that the court below was right. Plaintiff had resided in Minneapolis in the neighborhood of three months prior to the accident, was familiar in a general way with the streets, knew that cars were operated on Sixth street, and had been upon and across such street a number of times. She is a person of mature years, of unimpaired eyesight and hearing, and in possession of all her faculties. On the day of the accident she was on her way to visit a friend residing on Sixth street. She traveled from Fourteenth street down Fifth avenue, and at her arrival at Sixth street claims that she did not know she had arrived at the street, was confused, did not know her precise whereabouts, and, to definitely locate herself, determined to cross the street and make inquiry at a grocery store. She started from the corner of Fifth avenue and Sixth street to this grocery, traveling diagonally across the street, and, as she stepped upon the street-car track, was struck by a car coming from the direction in which she was going, and injured. The day was windy and cold, but the occurrence took place in broad daylight, and there was nothing to obstruct her view or distract her attention. She held, as she was crossing the street, her muff to her face, to shield it from the wind, which was blowing from the northwest. She testified, and it is claimed in her behalf, that she did not know that she was upon Sixth street, and did not know that a railroad track was upon the street she attempted to cross. Her condition of mind is best disclosed at that time by her own testimony, and whether she exercised that degree of care essential in such cases may be determined from what she says on the subject. She testified, so far as here pertinent, as follows: ‘I came to Minneapolis in December, 1899. I did not know at the time of the injury the location I was in. I knew there was a street railway on Sixth street. * * * I did not observe the tracks when I stepped on them. I did not know I was near a railway. I did not hear a bell. I did not hear any sound of a car. I could see well. It was light enough so I could see any reasonable distance. My hearing is about the average, and I could hear well enough. I suppose I was in possession of all my faculties at the time. My mind was clear. It must have been a winter's day. I presume it was cold. I had on an outside coat, with a collar. I do not know whether the collar was turned up. I had a muff in my hand. My recollection is that when I got as far as the corner of Sixth street I hesitated to see if I could make up my mind where I was. Not being able to do so, thought I would go across the street and ascertain at a little grocery.’ There is no evidence that the street-car track was obscured in any way, either by being covered with snow or otherwise.

It may be assumed, without stating it at length, that the evidence was sufficient to take the case to the jury on the question of defendant's negligence; and we have first to consider whether plaintiff was guilty of contributory negligence, as a matter of law, or,...